This is a really tricky topic to briefly cover in a post like this as cases vary so much and the issues are often complex. It has however also been the issue most followers have asked me to cover so I’ll do my best. I’ve put links to helpful resources at the bottom which you should check out if you want to pursue this further.
Whilst ideally everyone would be legally represented when applying for an order in relation to their children, many are unable to afford legal representation and are not eligible for legal aid.
Legal aid is still available in family cases in very limited circumstances you can find out more here:
If you aren’t eligible for legal aid and worried about legal fees you may want to explore less traditional legal representation. Some solicitors offer “pay as you go” schemes, they don’t go on the court record as formally representing you but you can have one off meetings where the can advise you and they can assist you prepare key documents.
You can also obtain legal representation for just the hearings, doing the preparation work yourself. Some solicitors provide this service and barristers do this via “direct access”.
The court does not require you to have a lawyer, you can make an application on your own and the family court is used to this as more and more people are appearing unrepresented.
The process can be daunting and you need to be prepared to put in the work to prepare your case. Reading up on relevant law and procedure will help you prepare a coherent case. You also need to be able to look at matters objectively, this can be the most difficult aspect as it is inevitably such an emotional matter and the support of a sensible and honest friend or family member can be invaluable to help you take a step back and review things.
Mediaton (MIAM)
Before you can make an application both parties are required to have attempted mediation in order to resolve the issue. There are limited exemptions to this requirement such as cases where there is domestic abuse. Many parents feel that mediation is just a hoop to jump through however I disagree, it is a really important first step. If you are able to resolve your dispute through mediation and avoid going to court you will save your child, yourself and family a lot of stress and time. Court proceedings are slow, difficult and highly emotional for all involved. It is always worth attempting mediation where possible. Even if it is not successful, it may assist in narrowing the issues in dispute or assist in reaching a short-term agreement until the court makes an order. Even if the other party says they will not attend, unless an exemption applies you still need to make the effort alone to engage with mediation as the court will require evidence that it has been attempted by way of a signed form from the mediator.
There is more information about mediation and how to find a mediator here:
https://www.familymediationcouncil.org.uk/family-mediation/
If mediation is unsuccessful or you are exempt it is at this stage you can make an application to the court for an order.
Application to the Court
What orders are available from the court?
1.Child Arrangements Order: This can be a live with and/or spend time with order. (These used to be referred to as residence and contact orders.
2. Specific Issue Order.
3. Prohibited Steps Order.
If you disagree with the other parent about where your child lives and/or how much time they spend with each parent you may wish to apply for a child arrangements order. If you cannot agree on a specific issue such as education or medical treatment you may seek to apply for a specific issue order. If you want to prevent the other parent from doing something such as removing the child from the jurisdiction you may seek to apply for a prohibited steps order.
How to make an application to the Court.
An application is made on Form C100 and an additional Form C1A can be completed if there is a risk of harm. If you want to keep your address and telephone number private from the other party you can submit an additional form C8.
https://helpwithchildarrangements.service.justice.gov.uk/going-to-court
https://www.gov.uk/looking-after-children-divorce/apply-for-court-order
You can apply online or via a paper application (if you apply online the risk of harm application and confidential contact details will automatically be incorporated into the application if relevant.)
My personal preference is the online application, you can come back to it later so can complete it over a few days. It is harder to go wrong and miss key information that is required so it is less likely you will make an error that will result in your application being returned. In addition the applications are processed more quickly than the paper versions. If you application is very urgent (requires a hearing within the next 3 days) call your nearest family court and find out how they would like you to get your application to them. Try and get a specific contact there who you can speak to to ensure the application has been received and processed as urgent. Local procedures vary so it’s worth checking with your local court their own procedures from very urgent matters.
Completing the application
Before you start the application make sure you have key details ready as it can be frustrating and off-putting looking for details as you go along. You need basic information about all involved in the case, yourself and the other party or parties (this is usually the other parent or anyone with parental responsibility) including their date of birth, place of birth, address (for the last 5 years), email and contact number. You will need the child’s full name, date of birth and details of any social services involvement or any other linked proceedings. If any of the information is unavailable to you, don’t panic, just complete the form as best you can. Contact details are needed so that the court and other professionals can get in touch with all involved about the case so do your best to make sure accurate up to date information is included.
It is really helpful to prepare a chronology and history document for yourself to refer to as the proceedings progress. This is not something you would share with anyone else, rather it is your working document where you can keep track of key dates and information in one place and refer to it and update it as you go along. It will also be useful if you later have to prepare a statement.
There isn’t much room on the form to set out the entire background to the case, the application is not meant to be a full statement or history of the case, rather a summary to identify key issues. It can be tricky to be concise about what has happened and what you seek and it may take you a few attempts to prepare something which you will feel is appropriate. Ultimately any decision the court makes in the case will be based on what is in the child’s best interest (what they think is best for the child). Summarise the dispute briefly and any key dates or events.
There is a court fee payable of £232, this is a one-off fee to lodge the application and issue the proceedings. You don’t have to pay for court time etc as the case progresses no matter how long the proceedings take. You may have to pay a further fee if a further application is required within your proceedings for something that doesn’t fall within your initial application, if this happens the court will let you know.
There is help available to pay the fee for those on low income, find out more here:
https://www.gov.uk/get-help-with-court-fees
What happens next?
If your application is time sensitive or urgent, I strongly recommend you follow it up with a call to the family court to ensure it is swiftly processed. The courts are overloaded and applications can get lost in the system to it is worth confirming timescales etc for your own peace of mind.
Once the application has been processed you will receive some formal documents from the court, this will include a sealed (formally marked) copy of your application, the hearing date and any directions (instructions) from the court about what must be done next and when. Read them carefully, they are legal documents and missing a key date can cause significant problems. This is when you really need to get organised, get a diary for the key dates, a folder for the important documents. Make a note of the key dates and your case number as you will likely need to refer to these frequently.
The other party will also receive a copy of the documents, if you haven’t told them about your application they will find out when the paperwork arrives from the court.
Cafcass
Prior to the first hearing you and the other party will be contacted by someone from the Children and Family Court Advisory Service (Cafcass). They will carry out safeguarding checks (checks with the police and social services) to see if there are any known safety or welfare issues. They will usually speak to you and the other party over the telephone to find out about your application and to identify any welfare concerns. Shortly before the hearing they will “file” that is send the court and the parties a safeguarding letter which is a short report on their enquiries and the outcome of the safeguarding checks and any initial recommendations to the court.
First Hearing – FHDRA (First Hearing Dispute Resolution Appointment)
If no safeguarding or welfare concerns have been identified by Cafcass, efforts will be made at the first hearing to encourage you and the other parent to reach an agreement. If an agreement can be reached at court this can bring an end to the proceedings and the agreement can be recorded in a legal document called a consent order.
If an agreement cannot be reached or if there are welfare or safety concerns the court may:
- Order the parties to take part in a Separated Parents Information Programme (SPIP)
- Refer the parties to a mediation assessment or ask Cafcass to help the parties reach an agreement
- Order a finding of fact hearing if disputed allegations have been made that might affect the outcome of the court process such as allegations of domestic abuse
- Where there are concerns about domestic abuse, or domestic abuse is found by the court to have taken place, the court can order a party to take part in a domestic abuse perpetrator programme
- Ask Cafcass to carry out more detailed work with your family and to write a report about the child’s welfare known as a section 7 report.
Helpful resources:
If you intend on issuing proceedings without legal advice, please do some homework first so that you can prepare your case properly. I’ve put together a list or resources below which you may find helpful:
- Government website which sets out details of children applications, fees, how to complete the form etc. You can complete your application online here
2. Cafcass – Divorce and separation for parents
https://www.cafcass.gov.uk/grown-ups/parents-and-carers/divorce-and-separation/
3. Child law advice – contains a wealth of information about proceedings and what to expect and do at each stage.
4. Resolution
5. Government legal aid website
6. Family mediation council
https://www.familymediationcouncil.org.uk/family-mediation/
7. Family Procedure Rules
https://www.justice.gov.uk/courts/procedure-rules/family/rules_pd_menu
8. The Children Act 1989
https://www.legislation.gov.uk/ukpga/1989/41/contents
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